to comply with the guarantee of the Fifth Amendment. The court reasoned that the testimony which was compelled might nevertheless be used "to search out other testimony" to be used against him in a criminal proceeding, 142 U.S. at 564. The court concluded that "no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States," 142 U.S. at 585.

Since Counselman, Federal immunity statutes have been phrased in terms which would bar any prosecution for or on account of any matter as to which testimony was compelled, see e.g., 49 U.S.C. 46. However, in two recent decisions, Murphy v. Waterfront Commission, 378 U.S. 52, 79-80 (1964). and Marchetti v. United States, 390 U.S. 39, 58-60 (1968), the Supreme Court has indicated that complete immunity from future prosecution is not essential and that a witness' privilege against self-incrimination would not be violated if he were compelled to testify under an assurance that the evidence he gave could not be used against him either directly or indirectly, i.e., as an investigative lead, in a state or Federal prosecution.

In view of the court's expression in Murphy and Marchetti, it would seem that the use restriction concept contained in Title II furnishes all the immunity the Constitution requires.

In his special message to the Congress of April 23, 1969, dealing with organized crime, President Nixon stated the need for a new broad general witness immunity law to cover all cases involving violation of a Federal statute, and he commended to the Congress for its consideration the recommendations of the National Commission on Reform of Federal Criminal Laws. The National Commission's proposed general immunity statute, unlike the present proposal which is limited to "any case or proceeding before any grand jury or court of the United States," would create a single, integrated immunity provision applicable to grand jury-court proceedings; formal administrative hearings by an independent agency or within the executive branch; and congressional investigations. Like the present proposal, however, the protection offered the witness is a restriction against use of incriminating disclosures or their fruits in any criminal case rather than absolute immunity from prosecution.

Under this proposal, in all three types of proceedings the Attorney General would receive notice of intent to obtain an immunity authorization. For grand jury-court proceedings the approval of the Attorney General is required upon a certification of need by the United States Attorney. For administrative hearing matters, the public interest assessment and power to issue a direction to testify are left with such agency officials as may be specified by statute, and notice must be given to the Attorney General at least ten days prior to the direction to testify. For congressional investigations the direction to testify is made by the United States District Court upon application by a duly authorized representative of either House of Congress, and notice of the application must be served on the Attorney General at least ten days prior to the time the application is made. Upon request of the Attorney General the court must defer the direction to testify for no longer than thirty days from the date of such notice to the Attorney General. One of the obvious merits of this proposal is its provision for notice to a central law enforcement point, the Attorney General, as a means of attempting to insure that the "public interest" being promoted by one agency will not subvert the "public interest" being promoted by another agency.

Accordingly, the Department of Justice recommends enactment of the immunity proposal of the National Commission on Reform of Federal Criminal Laws in lieu of the proposal contained in Title II of this bill.

TITLE III-RECALCITRANT WITNESSES

Title III would amend Chapter 19 of Title 28, United States Code, by adding at the end thereof a new Section 1826, "Recalcitrant witnesses". It provides in Subsection (a) that a witness in any court or grand jury of the United States who refuses without just cause to comply with an order of the court to give testimony in response to a question or with respect to any matter may be summarily ordered to confinement until such time as the witness is willing to testify. This proposal seeks to codify the civil contempt aspect of existing law as it applies to grand jury and court proceedings in the area of refusal to give testimony. United States v. Coplon, 339 F. 2d 192, 193-94 (C.A. 6 1964); Brown v. United States, 359 U.S. 41, 55 (1959) (dissenting opinion); Shillitani v. U.S. 384 U.S. 364 (1966).

The only difficulty we have with this provision is its lack of specification as to the outer limits as to how long confinement should be. Since under the principles governing civil contempt a witness can no longer be confined after it becomes impossible to comply with the court order, e.g., when the court proceeding is concluded or the grand jury discharged, it would seem that this limitation should be spelled out in the statute. It is recommended therefore that subsection (a) of this provision be amended by adding at the end thereof the following language: "but in no event shall such period of confinement exceed the life of the court proceeding or of the term of the grand jury before which such failure or refusal to comply with the court order occurred."

This Title also proposes to add a new subsection (b) to Section 1826 which states that "No person confined pursuant to subsection (a) shall be admitted to bail pending determination of an appeal taken by him from the order for his confinement." While we do not believe that this provision is really necessary in view of the fact that the court presently has authority to deny bail where the appeal is frivolous, United States v. Coplon, supra, we can see no objection to it since bail on appeal is not subject to the Eighth Amendment.

In order to take into account the exceptional case where substantial grounds for appeal may exist, e.g., where the constitutionality of Title II, Immunity, is challenged, or where the confinement is attacked as seeking incarceration rather than bonafide testimony, it is suggested that the addition of a provision for a time limit within which the appeal must be heard would be in the interests of justice. In line with this, it is suggested that the following sentence be added at the end of proposed new Section 1826 (b):

Any appeal from an order of confinement under this Section shall be disposed of within 30 days from the filing of such appeal.

TITLE IV-FALSE STATEMENTS

Title IV would add a new subsection, Section 1623, to Chapter 79 of Title 18, United States Code, creating an additional felony provision for perjury or subornation of perjury before a court or grand jury. The penalty provided is a fine of not more than $10,000 or imprisonment for not more than five years or both. The proposal is intended to supplement, not supplant, the existing statutes dealing with perjury and subornation of perjury, 18 U.S.C. 1621, 1622, which provide for a fine of not more than $2,000 and/or imprisonment for not more than five years.

The purpose of this Title, according to Senator McClellan, is to "abolish the outmoded two-witness and direct evidence rules in perjury cases, and [to] provide for the prosecution of persons making contradictory statements under oath. without requiring proof of the falsity of one of the statements." 115 Cong. Rec. S. 280. The theory behind this apparently is that since Title IV would create a new Federal crime dealing with false statements before courts or grand juries, the common law rules of evidence applicable to perjury prosecutions generally would not be applicable to it.

Prosecutions for perjury are subject to certain peculiar rules of proof. The two-witness rule requires that to obtain a conviction for perjury there must be testimony of two witnesses to the falsity of defendant's statement or testimony of one witness plus corroboration. "[I]t is most accurately stated in the negative fashion that Wigmore employs 'one witness, without corroborating circumstances does not suffice.'" United States v. Goldberg, 290 F. 2d 729, 733 (C.A. 2, 1961).

The direct evidence rule is that perjury must be proved by direct evidence, and not merely by circumstantial evidence, as to the falsity of the statement. Radomsky v. United States, 180 F. 2d 781 (C.A. 9, 1950). However, the direct evidence rule, as applied, has come to mean merely that where circumstantial evidence is relied on, the inference from the fact proved to the conclusion of falsity must be unusually strong, United States v. Collins, 272 F. 2d 650, 652 (C.A. 2,1959).

Abolition of the two-witness and direct evidence rule has been recommended by the President's Commission on Law Enforcement and Administration of Justice, and by Dean Wigmore. Evidence, Sections 2040-41 (3rd ed. 1940). On the other hand the two-witness rule was affirmed by a unanimous Supreme Court in Weiler v. United States, 323 U.S. 606 (1945). While there are meritorious arguments on both sides of the question, we are inclined to agree with the recommendation of the President's Commission that abolition of these rules is desirable.

We have some doubt, however, that the form of the proposed provision is adequate to accomplish the objective sought. Instead of amending the present perjury statute, this provision creates a separate crime, yet one nearly indistinguishable from perjury and it is feared that the courts are likely to conclude that the new crime is so similar to perjury that the same restrictive evidentiary rules must apply. Cf. United States v. Hammer, 271 U.S. 620 (1926). Consequently, we believe that legislative abrogation of these evidentiary rules requires specific language in the statute. In order to accomplish this objective, therefore, we suggest that this proposal be amended by adding at the end thereof the following new subsection (e) as follows:

(e) In any prosecution brought under this Section, the falsity of the statement or testimony set forth in the indictment or information may be established by the uncorroborated testimony of one witness, or by circumstantial evidence alone.

It is noted that subsection (a) of the false statement provision omits the requirement of materiality, but that subsection (d) thereof specifically mentions "material to the issue or point in question." We believe subsection (a) should be amended to include the word "material" since we do not believe that false statements as to immaterial matters should be punishable.

Subsection (d) of this provision would, in cases of inconsistent statements under oath, relieve the Government of the necessity of proving which one is false as is now required by such cases as McWhorter v. United States, 193 F. 2d 982, 983-84 (C.A. 5, 1952). Since, however, in light of the opinion in United States v. Goldberg, 290 F. 2d 729, 734 (C.A. 2, 1961), McWhorter may not be good law today, we can see no objection to overruling this by statute. Under this provision the prosecutor by being allowed to plead and prove the case in the alternative may show the falsity by logical inconsistency. In United States v. Buckner, 118 F. 2d 468 (C.A. 2, 1961), the court declared:

It seems strange that in the federal courts an indictment for perjury may not yet be drawn in the alternative and that there may not be a conviction for deliberately making oath to contradictory statements unless the prosecutor shows which of the statements was false.

It is noted that subsection (d) is limited to statements made "in the same continuous trial." We would suggest that this be broadened to include the phrase "or same continuous grand jury proceedings" since the interest in obtaining truth is no less before the grand jury than at trial. Such an amendment, moreover, would be consistent with the tenor and policy of S. 30's emphasis on strong and effective grand jury proceedings. It would also be consistent with Title IV itself which in all other places concerns itself with petit and grand jury proceedings.

Finally, it is noted that this provision is not as inclusive as the present Federal perjury statute in that subsection (a) is limited specfically to "any trial, hearing, or proceeding before any court or grand jury" and thus not only are pre-trial depositions, affidavits, and certificates excluded but also administrative and legislative hearings or proceedings. The Committee may wish to consider whether it would not be appropriate at this time to amend the present perjury statute, 18 U.S.C. 1621, and thereby by express language abolish the peculiar evidentiary rules applicable to perjury generally in all types of proceedings to which the statute is presently applicable.

TITLE V-DEPOSITIONS

Title V would amend Chapter 223 of Title 18, United States Code, by adding at the end thereof a new Section 3501, "Depositions". This provision would allow the Government to take depositions for the purpose of preserving the testimony of Government witnesses. The depositions would be taken after the filing of an indictment or information, and the defendant would be given an opportunity to be present with counsel and to cross-examine the witness. The deposition would be admissible in evidence at the trial, subject to the rules of admissibility of evidence, in the event the appearance of the witness cannot be obtained because the witness is dead, or is out of the United States, or is unable to attend or testify because of sickness, or the Government has been unable to procure the attendance of the witness by subpoena. Provision is also made for the payment

by the Government to the defendant's attorney and to a defendant not in custody, expenses of travel and subsistence for attendance at the examination. The Government is also required to make available to the defendant for his examination and use at the taking of the deposition of any statement of the witness being deposed which is in the possession of the Government and which the Government would be required to make available if the witness were testifying at the trial. This provision extends to the Government a right that a defendant in a criminal case already enjoys under existing law under Rule 15, Federal Rules of Criminal Procedure. Although there is no direct authority in the matter, the extension of this right to the Government should not itself run afoul of the Constitution. Where, as in this provision, the defendant's Sixth Amendment rights to representation by counsel and confrontation of witnesses are well preserved by allowing an opportunity to be present with counsel and to cross-examine the deponent, this provision should pass constitutional muster, Mattox v. United States, 156 U.S. 237 (1895). See Pointer v. Texas, 380 U.S. 400, 407 (1965); Motes v. United States, 178 U.S. 458, 472 (1900); Jones v. California, 178 F. 2d 458, 472 (C.A. 9, 1966).

It is noted that proposed Section 3501 contains one important provision not included under Rule 15. Thus, under Rule 15, while a defendant can depose any necessary witness who might not be able to attend the trial, he has no right to inspect the statements of a prospective witness before trial. United States v. Berman, 24 F.R.D. 26 (1959); Johnson v. United States, 260 F. 2d 345 (1958). However, under 18 U.S.C. 3500, the defendant can get such statements after the witness has testified on direct examination. Under the proposed bill if the Government deposes a prospective witness, it must make available for the use of the defendant at the time of the examination any statement of the witness in the possession of the Government which it would be required to make available to the defendant if the witness were testifying at the trial. It is felt that this requirement is necessary to protect the defendant's right to effective crossexamination of the witness.

We feel that this provision's extension of the right to take depositions to the Government will provide an extremely useful tool in the effective trial of all criminal cases, but particularly in those involving organized crime cases where there is a substantial danger that the witnesses will not be available at the time of trial.

TITLE VI-PROTECTED FACILITIES FOR HOUSING GOVERNMENT WITNESSES Title VI authorizes the Attorney General to rent, purchase, or construct such facilities as are necessary to provide secure and safe housing for Government witnesses and potential Government witnesses and their families in legal proceedings and investigations against persons alleged to have participated in organized criminal activity. It also provides that the Attorney General may offer the use of these facilities to such persons when in his judgment their testimony or willingness to testify would place them in jeopardy through illegal efforts to prevent them from testifying or punish them for testifying. It also defines "Government" to mean either the Federal or State Government, thus bringing within its scope witnesses in state proceedings. An appropriation of $1,000,000 is authorized for the fiscal year ending June 30, 1969, for carrying out this proposal.

The question of protecting Government witnesses is not one of law but of practicality. In view of the nature of organized crime there can be no doubt regarding the need for protection of witnesses. In pursuit of its ends the members of organized crime syndicates will ruthlessly eliminate anyone who stands in the way of success in any criminal enterprise and will destroy anyone who betrays the secrets of the syndicate.

While the Department wholeheartedly supports the theory behind Title VI, we believe that instead of limiting the Department to the renting, purchasing, and constructing of housing facilities, the Congress should consider a broader range of uses for the expenditure of funds in this area. The most substantial item which should be allowed for is perhaps the salaries and expenses of the United States Marshal's office which provides protection for most such witnesses. In addition, we believe that there should be authorization of appropriations for the care and protection of such witnesses to be used in whatever manner is deemed most useful under the special circumstances of each case. Such a provision would provide the necessary flexibility to adequately deal with this problem.

The Bureau of the Budget and the Department of Justice have undertaken a study of the potential costs of Title VI in response to Senator McClellan's letter of March 17, 1969 to the Director of the Bureau. While that study is not yet completed, we believe it desirable that the bill not specify a particular appropriation authorization amount or limit the authorization to a single fiscal year. It is also noted that this Title speaks in general terms of providing such protected facilities to witnesses and potential witnesses in "investigations which might lead to legal proceedings." In view of the enormity of the expenses involved in the care and protection of witnesses and informants in this area generally, we do not wish this Title to be construed as shifting the responsibility for the expenses of informants which are presently being borne by the several investigative agencies of the Government, including the Federal Bureau of Investigation, the Internal Revenue Service, the Bureau of Narcotics and Dangerous Drugs, and others.

Finally, it is noted that this Title authorizes the Attorney General to provide secure and safe housing facilities for the use of both state and Federal witnesses. In view of the enormity of the costs and other practical problems involved in the protection of witnesses, the Department believes it to be inappropriate for it to assume the responsibility for the protection of state witnesses and feels that this responsibility should be assumed by the states. While, therefore, we do not be lieve that the Attorney General should be authorized to provide for the care and protection of state witnesses, we would not be opposed to granting him authority to offer the use of housing facilities, on a reimbursable basis, in limited situations where the states cannot provide adequate facilities to its witnesses, provided all other arrangements and expenses for the protection and care of such witnesses, such as guards, subsistence, medical care, etc., are made and borne by the states.

TITLE VII-DECLARATION OF CO-CONSPIRATORS

This Title would amend Chapter 223 of Title 18, United States Code, by adding at the end thereof a new Section 3502, "Admissions of co-conspirators".

This provision woud make admissible into evidence in a criminal action in which it is alleged that two or more defendants participated as co-conspirators in the commission of a criminal offense, an extrajudicial declaration made by one such defendant against any other defendant if the court determines that: (1) the declaration was made by the defendant during his participation in the conspiracy, (2) there are in existence facts and circumstances from which its trustworthiness may be inferred, (3) the declaration relates to the existence or execution of the conspiracy, and (4) the declaration was made during the time in which such other defendant participated in the conspiracy.

This provision appears to codify in all but one respect the present law as to the admissibility in evidence of the declarations of co-conspirators in conspiracy cases. All aspects of the present rule are retained save the requirement of “furtherance". In lieu of this, there is substituted the requirement that such a declaration must "relate to the existence or execution" of the conspiracy, and that to render it admissible the court must find that "there are in existence facts and circumstances from which its trustworthiness may be inferred".

The "conspirator's hearsay exception" is a firmly established exception to the general rule against the use of hearsay to establish criminal liability. Krulewitch v. United States, 336 U.S. 440, 443 (1949). The exception has come to rest in American jurisprudence on agency principles, as articulated by Mr. Justice Storey in United States v. Gooding, 25 U.S. (12 Wheat.) 460, 469 (1827), and the exception remains as yet unquestioned by the Supreme Court. See Bruton v. United States, 391 U.S. 123, 128 N.3 (1968).

The rationale behind this proposed change apparently is that the "furtherance" requirement of this exception is of somewhat ill defined meaning, but apparently an outgrowth of the agency rationale which is sometimes stated in terms of res gestae language, but which many other courts interpret so broadly as to apply to anything that relates to the conspiracy. Since this reduces the requirement to relevancy, and since all evidence must be relevant, it is reasoned that the "furtherance" requirement is thus eliminated in substance if not in form. This being so, it is felt that something more, namely, the element of trustworthiness should be required.

The logic of this argument is quite compelling, and the substitution of the element of trustworthiness of relevant evidence for the furtherance requirement